Study On Determining Royalties For Standard Essential Patents

Royalty is one of the core issues involved in the standard-essential patents.For the current problems faced by many countries in the world,it is the key to solve the problem by clarifying the general rules and calculation methods.However,the generality and ambiguity of the FRAND terms lead to the lack of clarity of the obligations of the SEP holders.And practice shows that the existing calculation methods are more or less limited.Faced with numerous difficulties,the court determining an accurate and reasonable royalty is like a fishing moon.In order to better handle the disputes over the standard-essential patents licenses,firstly,we should correctly correspond the essence of the FRAND terms,that is,from the basic theory of economics,we crystallize the abstract FRAND terms from an individual rational perspective.Second,to maximize the encouragement of SEP holders and standard implementers to reach a license agreement in a free and equally negotiated market.After the failure of the market mode of work,seek judicial assistance from the court again.Finally,our judicial authorities should devote themselves to constructing a supporting system related to the licensing of SEP and perfecting the rules for determining royalties under the FRAND terms.In calculating the royalties,we should recognize that different methods of calculation have advantages and disadvantages,but the methods are not completely opposite.The calculation of a royalties usually involves the simultaneous application of several methods.Therefore,in the trial of the case,the judge should select the appropriate calculation method based on the specific merits and the circumstances of the evidence with a view to awarding the royalties in accordance with the FRAND terms within the facts that can be ascertained.Excluding the introduction,this article consists of five parts.The first part defines the issue of standard-essential patents royalties,mainly including the definition of standard essential patents and related concepts.It briefly discusses the emergence and connotation of the FRAND terms,the economic interpretation of FRAND licensing fees and the involvement of standards-essential patents licenses.The types of cases involving the SEP royalties are also introduced.The second part,combining domestic and foreign judicial precedents,this part analyzes the current mainstream determination methods of standard SEP royalties,namely the market approach and the non-market approach(the judicial determination of SEP royalties),and the pros and cons of various calculation methods.To sum up,review,to pave the way for exploring rules and methods for determining royalties under FRAND terms at home.The third part is the extraterritorial investigation of the SEP license fees.Taking the United States,Europe,and Japan as examples,this part analyzes the current licensing fees in various countries from the legal validity of the FRAND commitments,the principles and methods for the setting of FRAND licensing fees,the typical case law and the current state of justice.The fourth part discusses the judicial practice of the determination of SEP royalties in China,combs the development of the FRAND terms in China,the judgment of the Huawei case,and the current judicial dilemma facing China.By analyzing and summarizing the judicial status quo of Chinese standard-essential patents licenses,we can clarify the current difficulties and challenges so as to explore a system of rules for the determination of SEP royalties in China.In the fifth part,in view of the current dilemmas and challenges our country is facing,this article discusses the choice of the route of the licensing fee in our country.First of all,the basic principle of determining the rpyalties should be clarified,that is,patentees and standard implementers should be encouraged to determine the royalties in the market mode;the fair and reasonable distribution of interests between the patentee and the standard implementer;the standard-essential patents with the same transaction conditions Licensed license fees should be close.Secondly,on this basis,further establish and perfect the rules and methods of calculation.Finally,the conception of a system related to the licensing of standard-essential patents is envisaged in order to determine the fair,reasonable and non-discriminatory licensing fees through diversified non-litigation before the patented technology enters the standard.So as to realize the universal application of standards and increase the ultimate goal of social welfare as a whole.